Zero tolerance

As Maine schools enforce harsher and harsher punishments against misbehaving students, a more rational approach to discipline takes root

By Noah Bruce

Tracy Jannicelli’s last day of public school started out pretty bad, with a sore throat and a headache, and ended up even worse, with a 10-day suspension from Lake Region High. Worst of all, SAD 61’s school board expelled the ninth-grader a short time later for violating the school’s drug policy. But if you listen to Jannicelli, all she took were a couple of aspirin.

Feeling under the weather upon arriving at school, Jannicelli began asking around for some aspirin. “A girl came up to me and handed me two pills,” she says. “And I trusted this girl. She said they were a pain reliever. I said OK, and I took them.”

By taking these pills, Jannicelli violated the school’s policy on taking medication — students are only allowed to take medicine, even over-the-counter medication, that is dispensed by the school nurse. However, according to Superintendent of Schools for SAD 61 Candace Brown the pills were not aspirin but prescription drugs, and therefore Jannicelli had also run afoul of the school’s zero-tolerance policy on drugs. Later it was revealed in court documents that the school board believes Jannicelli took Ritalin. As is the policy with many schools across Maine and the nation, when you are caught taking drugs at Lake Region High, the sentence is automatic expulsion.

TRACY JANNICELLI: a victim of zero tolerance in Maine.

Brown does not buy the argument that Jannicelli believed she was taking aspirin. “We have no reason to believe she did not know what she was taking,” she says.

On February 2, federal judge Gene Carter denied the Maine Civil Liberty Union’s request for a restraining order that would have forced Lake Region to readmit Jannicelli. Though Carter said he does not believe the girl is likely to have the expulsion overturned in the courts, Jannicelli’s MCLU-appointed attorney, Richard O’Meara, plans to further pursue the case on the grounds that Maine law allows for expulsion only if a student “knowingly takes a scheduled drug,” says O’Meara.

While the question of whether Jannicelli knowingly took prescription drugs or not is crucial to her argument that she should be allowed back in school, it is only incidental in making a case against zero-tolerance policies. Even if Jannicelli is guilty of purposefully taking Ritalin, expulsion is a draconian measure for a girl who had never been in serious trouble before. But if she actually took aspirin — what she actually ingested is still a matter of contention — or even thought she was taking aspirin, the expulsion is another example of zero tolerance gone awry.

“Zero tolerance” is a slippery term due to its different meanings, says Bruce Smith, the Portland lawyer who is representing SAD 61 in the Jannicelli case. “Zero tolerance is not a phrase that has any legal definition,” says Smith. “It can generally mean two things. It could simply convey we’re not going to tolerate a particular form of conduct, or it could also say something about what the consequences will be for these actions.”

“The hallmark of zero tolerance is mandatory sentencing,” says Russ Skiba, director of the Safe and Responsive Schools Project at the University of Indiana. In order “to provide the right learning environment for the kids” — as Neal Allen, chairman of the SAD 61 school board, puts it — school boards (or sometimes federal or state laws) enact a policy where certain behaviors are punished by mandatory sentences. Though the term is most often used in conjunction with the most serious offenses, like violence or drug possession, and the harshest punishments, such as expulsion or suspension, one could call a policy that assigns an automatic detention to anyone caught in the halls between class zero tolerance.

“It will provide a real good shock effect to the kids.” — Rep. John McDonough (D-Portland)

Critics of zero tolerance feel that when schools use a generic punishment for a discipline problem instead of looking at each case individually, discretion is often left out of the equation.

“At a certain point it gets easier to say, ‘Let’s apply the rules to everybody. Let’s abandon discretion because discretion gets me in trouble,’ ” says Vincent Schiraldi, president of the Justice Policy Institute, a DC-based group that studies zero-tolerance policies nationwide. By employing generic punishments, administrators hope to shield themselves from blame in the case of a violent episode or a drug overdose.

But “schools are confusing equal treatment with equitable treatment,” says Tony DeMarco, director of the Juvenile Justice Center at Boston’s Suffolk University Law School, and the results are “extreme and bizarre.”

Unless you’re the student who is punished, the results can actually seem pretty funny. An Arkansas first grader was suspended in late January when he pointed a chicken finger at his teacher (he claims he was pointing at his friend) and said “pow, pow.” In September of last year an 11-year-old in Atlanta was suspended for 10 days for possessing a weapon in school. The weapon: a 10-inch chain connecting her Tweety Bird wallet to her pants. A senior in Loudoun County, Virginia, was suspended for 10 days when he used mouthwash at school. Because the product contained alcohol, he was charged with violating the zero-tolerance policy on liquor and was required to attend a three-day substance-abuse program. In Pittsburgh, in 1998, a 6-year-old boy was expelled from school for wearing a plastic axe as an accessory to his fireman Halloween costume.

In the past few years, Maine has had its share of zero-tolerance controversy. Most recently, there is Jannicelli’s story. Then there is the case of eighth grader Nicolas Inskeep, who administrators at Noble Junior High in Berwick suspended for one day after he brought empty shotgun shells to school for use in an art project.

Last year, Cape Elizabeth High’s decision to refuse admittance to Seiha Srey, a 17-year-old accused of murder, was an example of “zero tolerance thinking” according to Daniel Lilley, Srey’s attorney. Though he had yet to stand trial, administrators deprived Srey of his right to attend school — though they did provide private tutoring — because they feared the young man or perhaps because they were afraid of the reactions of parents who did not want him in school with their kids. “They were afraid he would eat their children,” says Lilley. All charges against Srey were eventually dropped and he was admitted to Cape Elizabeth.

Like Srey — found guilty in the Cape Elizabeth court of opinion before proven guilty in a court of law — Maine kids who are accused of making a bomb threat will also be punished before they are proven guilty if the legislature passes a new zero-tolerance bill. The bill will make it mandatory to take away an accused student’s license until he or she either turns 20 or is proven innocent. This “stands [the notion of] innocent-until-proven-guilty on its head,” insists Representative Thomas Bull (D-Freeport). Further, the proposed law will hold parents responsible for up to $10,000 in damages upon conviction.

Representative John McDonough (D-Portland), the chair of the special study committee that created the bill, says it will provide “a real good shock effect to the kids.”

 

The term “zero tolerance” was first used in conjunction with an anti-drug smuggling policy in San Diego in the mid-’80s. The policy allowed the police to seize any boat with drugs on it. Didn’t matter if you had a 100-foot yacht and they only found one skinny joint; your yacht became their yacht.

In the early ’90s, some school districts picked up on the idea and began instituting zero-tolerance policies of their own. School boards saw the policies as measures designed to fight the rising youth crime rates of the late ’80s.

“The bill absolutely goes too far.” — Rep. Michael Quint (D-Portland)

Zero-tolerance policies spread further in October of 1994 when President Clinton signed the Gun Free Schools Act into law. The act seemed to make sense — it withheld federal education funds from states that refused to institute a mandatory punishment of a one-year expulsion for any student who brought a gun to school.

Quickly, all 50 states enacted laws implementing the new policy. However, according to the Juvenile Justice Center’s DeMarco, many states were not content with the narrow focus of the law and set about widening its scope.

“From that small federal restriction, what ended up happening was the states started experimenting,” says DeMarco. “For instance, Massachusetts made bringing any drugs or any weapons, and any assault on a teacher, grounds for expulsion. This kind of thing rippled like a locomotive across the country.”

According to Bob Schwartz, head of the Philadelphia Juvenile Law Center, a children’s rights advocacy group, some discipline has gotten out of hand now that many states have expanded zero tolerance to include all weapons, and not just firearms, as grounds for expulsion.

“It started out fairly benign,” says Schwartz. “No one wants guns in schools, but it ended up with kids getting kicked out for water guns and cardboard cutouts.”

In Maine, state law was changed to allow school districts to expel students for violent acts and possession of weapons or drugs. However, Maine state law is flexible, and aside from the mandatory one-year expulsion for bringing a gun to school, cannot be called zero-tolerance. According to Smith, the lawyer for SAD 61, Maine grants the power to the board to expel for these offenses, but does not necessitate its use.

State law does allow school boards the autonomy to write whatever zero-tolerance policies they want, however. This has led boards in districts like SAD 61 to create zero-tolerance policies that call for a student who is caught with drugs or weapons to be expelled, while other districts have chosen to continue to employ discretion on a case-by-case basis.

According to Chris Northrop, a Wells-based lawyer who has defended many juvenile victims of zero-tolerance policies, boards are using zero-tolerance to expel Maine students in increasing numbers.

“We’ve been seeing more and more [expulsions] in the last two years and they are really affecting students adversely,” says Northrop. “These kids who wind up getting expelled, they’re home. They have no education going on. They’re home for months at a time. No one’s benefiting from that. There are cases where the punishment doesn’t come close to fitting the crime.”

Northrop says the spike in expulsions began when many school boards in Maine instituted zero-tolerance policies against threatening speech. The problem is, some of these policies do not distinguish between a bomb-threat and the idle threats made in school hallways across the country.

“If two kids get in a fight and one says, ‘I’m going to kill you,’ he can be expelled in some Maine school districts,” says Northrop. “What used to be school-yard posturing is now zero-tolerance stuff.”

When a student is suspended or expelled for a mindless reason (like pointing a chicken finger at someone, or making an idle threat), it is easy to blame administrators and school boards. However, school staff and school boards reflect the concerns of their districts.

According to Schiraldi, “adults rely on the media to tell us about youth crime.” Increasing attention to youth crime in the media leads to increased parental concern.

Naomi Gittins, an attorney for the National Association of School Boards, explains the link between parents and school boards. “School boards are political entities and they need to respond to parents’ concerns,” she says.

Parents who are concerned about their children pressure school boards and administrations to make schools safe. The reaction of some schools is to install zero-tolerance policies. “Zero tolerance is a convenient vehicle to convince the public that they’re doing the right thing,” says Peter Leone, a professor of special education at the University of Maryland who heads the National Center for Education, Disability, and Juvenile Justice.

Of course, the tragedy — and media event — that most scared parents, and consequently increased the severity of zero-tolerance policies nationwide, was Columbine. “Every time you have a Columbine, you end up with a wave of parents calling their children’s school,” says DeMarco.

“Columbine was phase two of zero tolerance [after Clinton’s gun policy]. It ratcheted up punishments in schools,” says Schiraldi.

The media’s coverage of school shootings, and youth violence in general, has helped blow the public’s perception of youth crime out of proportion. “There are incidents,” says Gittins, “that make people think that the situation is more serious than it is.”

“When I was growing up, if a 12-year-old kid stabbed another kid in Springfield,” says Schiraldi referring to the Massachusetts stabbing on February 3, “I never would have known about it. If I did find out it was in sober tones as David Brinkley reported it. Today we see it as [it’s occurring] live.”

Make no mistake about it, America’s youth are more violent than the youth of any other industrialized nation in the world according to the 1997 Centers for Disease Control report “Rates of Homicide, Suicide and Firearm Related Death Among Children.” Still the public fear of youth violence seems disconnected from the facts, especially considering that domestic juvenile crime rates have been falling since the early ’90s.

A report released in April of 2000 by the Justice Policy Institute entitled “School House Hype: Two Years Later” states that “a phone poll of 1004 adults for the Wall Street Journal and NBC News revealed that 71 percent of Americans thought it was likely that a school shooting could happen in their community.” The study also reported that “a Washington Post poll, conducted seven months after the tragic shootings at Columbine High School, revealed that 60 percent of respondents reported school violence as an issue that ‘worried them a great deal.’ ”

However, statistics show that these fears are unwarranted.

According to “School House Hype”: “During the 1998-1999 school year, the year that included the Columbine shooting, the National School Safety Center reported that there were 26 school-associated violent deaths — a 40 percent decline from the previous year. Since there are 52 million students in America’s schools, the odds of dying a violent death in a school in America [two years ago] was one in two million.”

In fact, a US Justice Department report entitled “Juvenile Arrests in 1999 among Americans under 18” shows those likely to be in school are committing crimes at a lesser rate. Among kids under 18, robbery dropped 53 percent from 1991 to 1999; rape went down 31 percent; burglary decreased 60 percent from 1980 to 1999; and crime in almost every category — assault, larceny, motor vehicle theft, and arson — fell by more than 23 percent in the past decade.

Sharon Rubenstein, communications director for Advocates for Children and Youth, in Baltimore, Maryland, says parents’ fears of another Columbine is much like the average person’s fear of flying. “Though you are far more likely to die in a car crash than an airplane crash,” says Rubenstein, “the details are so gruesome that most people are more scared of the dying in an airplane. The school shootings were like that. Though statistics show that a school is probably the safest public place for kids to be, the details of these incidents make people very afraid.”

Strangely, as youth crime rates have fallen, it seems cases of misapplied zero-tolerance policy have become more common. “There are hundreds and hundreds of these cases,” says Russ Skiba. “We tend to chuckle and think these are districts that have gone over the line, but I think [misapplication] is inherent in zero-tolerance philosophy.”

In addition to the obvious harm done to students who are punished by cookie-cutter discipline, zero-tolerance policies have more hidden and profound effects.

According to Peter Leone, when zero-tolerance policies are coupled with increased focus on accountability — the philosophy favored by President George W. Bush that schools should be measured by how well students do on standardized tests — administrators and school boards can be tempted to use zero-tolerance policies to rid schools of students who bring the school down with low test scores. Students who score poorly on tests are often the same students who have discipline problems.

“There is a correlation between achievement and juvenile delinquency. It is an inverse relationship,” says Lynn Davey, developmental psychologist and director of the Maine Kids Count program, a project that informs community leaders by compiling an annual report of child well-being in Maine. Thus, zero tolerance can become a convenient tool for bolstering a school’s image by tossing the bad apples and increasing test scores.

“There’s no incentive to keeping problem kids in school,” says Leone.

In addition to depriving some kids of an education, this method of kicking out troubled youth can simply be a means of shifting the problem from the school to the community at large. Leone believes if these kids are not causing problems in school, then they are doing it on the street.

“If you take kids that are prone to trouble and you turn them out, they’re going to be stealing cars and breaking into homes,” he says.

Another problem with zero-tolerance policies is that data suggests they seem to subject ethnic minorities to harsher discipline than whites. “School House Hype” reports that “In Phoenix, Arizona, African-American students are suspended and expelled at 22 times the rate of whites. Austin, Texas, San Francisco, California, and Denver, Colorado, all expel and suspend African-American youth at more than three times the rate of white students.”

Finally, some question whether the punishments zero-tolerance policies usually employ — suspensions and expulsions — even work at all.

“There’s no proof that suspension and expulsion work to stop crime,” says Russ Skiba.

“There’s no strong evidence that zero-tolerance policies have any effect on kids,” adds Leone.

“Zero tolerance takes a kid who already is having trouble,” adds Davey, “and makes them totally alienated.”

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With President Bush’s recent pick of Rod Paige for Secretary of Education, it looks like zero-tolerance policies are here to stay as national education policy. The February 12, 2001, edition of the New Republic reports how, as head of Houston schools, Paige instituted zero-tolerance and fierce accountability policies. Students who were expelled from Houston schools were sent to a privately run school that purported to cater to their special needs. In reality, the school was grossly understaffed and students sometimes received grades that bore little relation to their performance.

Maine, on the other hand, seems to teeter between the get-tough approach to discipline that is zero tolerance, and a growing interest in more holistic methods like restorative justice and the implementation of civil-rights teams in schools.

The bomb-threat bill that would take away a student’s license is a prime example of zero-tolerance. The bill was designed by a study committee charged with the task of addressing the issue of bomb threats in Maine schools.

Critics, like Representative Michael Quint (D-Portland), feel this bill “absolutely goes too far” in punishing students who do not mean to be malicious but see a bomb threat as a “prank.” He argues that students who make bomb threats are already expelled and charged with a felony and feels increasing the penalties will not deter potential offenders.

Representative Bull also has a problem with a part of the bill that calls for bomb-threat cases to take precedence over other cases in the judicial system.

“That’s making an assumption that these are worse than any other cases that come before a judge,” he says. “We have a murder case and a bomb case and the bomb case comes first. That’s not appropriate. This is an easy way to make it look like we’re doing something without affecting the overall juvenile system.”

“That’s hogwash,” says Representative McDonough of Portland, chairman of the study committee. “Judges balance their schedule and won’t have to delay other important cases.” McDonough adds, “They [take away the licenses of] deadbeat dads and it’s been a hell of a help.”

Representative Bull has written a competing bill that gives judges the power to take away a student’s license but does not make the measure mandatory. It also leaves out fining parents, punishing students before they are proven guilty, and giving judicial preference to bomb-threat cases.

Now the Criminal Justice Committee must decide whether to send Bull’s bill or the more stringent bill to the House of Representatives as a whole.

Ned Chester doesn’t think either bill “gets to the heart of the problem.” Chester is a Portland lawyer who defends juveniles and an advocate for restorative justice — a philosophy that focuses on accountability rather than punishment.

It works like this: say a girl gets caught with a knife in her pocket; instead of being suspended or expelled, she must stand up in front of the school and explain why the action was wrong. She also must sit down with anyone who felt affected by her action – in this case any student or teacher who felt afraid because a knife was brought to school. Finally, the student would have to perform community service for her school.

The approach works on several levels. First, it is a deterrence to other students — no kid wants to stand in front of her peers and explain how she messed up. Second, by having the offender confront the injured party, the student sees the tangible effects of her action. This part of the process also serves as an outlet for the victims to vent their anger and frustration. Finally, the community-service component serves as a productive form of discipline.

Restorative justice is currently used in the Maine juvenile justice system, but is just beginning to catch on in schools. Chester is working with Assistant District Attorney for Cumberland County Christine Thibeault to institute a restorative justice policy in the Portland School district for some students who are caught making a bomb-threat. Thibeault stresses that the philosophy is not a get-soft-on-crime approach but a more effective means of deterring other bomb threats.

“Its not a feel-good, touchy-feely approach,” says Thibeault. “It’s about holding students accountable and deterring other students.”

Perhaps most important, restorative justice does not remove the offender from the community, or an education, as zero tolerance does when expelling students for their first offense.

A new study released by the Maine Department of Education entitled “Taking Responsibility” includes restorative justice as one of its “best practices.” The report, which is the culmination of a year’s worth of work by educators and community leaders says, “In contrast [to traditional discipline], restorative discipline seeks to shift the focus to the harm done to the victim and community.”

It’s important to note that restorative justice is not meant for all situations and all offenders. According to “Taking Responsibility” the approach is not appropriate for addressing bullying or students who consistently break rules. Thibeault adds that in regard to bomb threats, restorative justice would be more appropriately used with a 12-year-old who did not understand the consequences of his actions than a 17-year-old who called in a threat to avoid a French test.

However, when appropriate, many feel that restorative justice is superior to zero-tolerance policies that effectively remove the offender from the community entirely. “There is a social fabric in any community,” says Chester. “When there is an offense, what restorative justice does is resolve the whole community’s problem. Or at least it lets the healing process begin.”

Another community-intensive, alternative approach to dealing with youth violence in Maine, attempts to head infractions off before they occur, through the use of civil-rights teams in schools. Teams consist of student leaders and teachers and work to change the culture at schools from hostile to respectful by focusing on eliminating problematic types of speech. According to Stephen Wessler, director of the Center for the Study and Prevention of Hate Violence at the University of Maine, the seeds of violence can often be found in the language.

“If boys start seeing it is routine to use highly degrading sexual language about girls,” he says, “some boy will get the idea that they can use it to a particular girl. It’s not unusual that a boy will then grope the breasts of a girl in the hall. If nobody stops that, then no one should be surprised when someone is accused of a serious charge of sexual misconduct, like date rape in the back of the car.”

Wessler has worked to set up civil-rights teams in over 150 Maine schools and has found administrators and teachers eager to work creatively to create more respectful environments. He favors an approach to discipline that includes both appropriate punishments and attempts to change the root problems that result in violent behavior.

“I’m urging that we don’t just think about issues from a disciplinary standpoint. You need to be at both ends,” says Wessler. “I believe not in zero tolerance but in firm discipline that is applied consistently.”

Noah Bruce can be reached at nbruce@phx.com.